Ohio
Author
Monica L. Dias, Member
Frost Brown Todd LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202
513-651-6783
mdias@fbtlaw.com
Last updated October 2019
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The Ohio Supreme Court generally recognizes a First Amendment right for the press and public to attend court proceedings. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). “Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.” Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 134 (Ohio 1976)). The Ohio Supreme Court has adopted the Press-Enterprise II “experience and logic” test, which “accurately defines the limits of constitutionally protected access to all court proceedings.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). In applying Press-Enterprise II, the Ohio Supreme Court had held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” Id.
The Ohio Supreme Court also recognizes that the Ohio Constitution includes a right to a public trial. See State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39 (Ohio 1986). This right is embodied in the “open courts” provision of the Ohio Constitution, Section 16, Article I, which provides: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” In the context of criminal trials, the accused’s constitutional right to a public trial also supports the right of public access to the trial, including pre-trial proceedings. See In re T.R., 556 N.E.2d at 448; Unger, 504 N.E.2d at 40. “The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society.” Unger, 504 N.E.2d at 39. Media organizations have argued that the Ohio Constitution creates a qualified right of access to all court proceedings and creates a broader right than the First Amendment. See In re T.R., 556 N.E.2d at 446–47. However, certain court proceedings in Ohio, including grand jury hearings, petit jury deliberations, and conferences in chambers, have never been open to the public. Id. at 447. Therefore, the Ohio Supreme Court has ruled that the Ohio Constitution creates no absolute right of public access to all court proceedings. Id. In so holding, the Court found that the Ohio Constitution creates no greater right of access to court proceedings than that provided by the First Amendment of the United States Constitution. Id. at 448.
The Ohio Supreme Court recognizes the common-law right of public access to court records. See State ex rel. Scripps Howard Broad. Co. v. Cuyahoga Cty. Court of Common Pleas, 652 N.E.2d 179, 183 (Ohio 1995). Rule 45 of the Rules of Superintendence for the Courts of Ohio embodies the common-law presumption of access. Rule 45 provides: “Court records are presumed open to public access.” Sup. R. 45(A). Rule 44 defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 44(B). As for court proceedings, while Ohio courts cite the First Amendment and the Ohio Constitution as the basis for public access, they also recognize that certain proceedings have “historically been open to the public.” See, e.g., In re T.R., 556 N.E.2d at 446; see also State ex rel. Beacon Journal Publ’g Co. v. Radel, 611 N.E.2d 520, 523 (Ohio Ct. App. 1993) (“The foundations of freedom necessitate open court proceedings . . . . Justice thrives in the open sunlight of day. If we deny to the public and press access to courts of justice, we foster a system of jurisprudence heretofore unknown in the history of Ohio”).
Rules 44 through 47 of the Rules of Superintendence for the Courts of Ohio provide the requirements regarding the circumstances in which court records can be withheld from the media and the public. Sup.R 44(B) defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 45(A) provides that “[c]ourt records are presumed open to public access.” Sup.R. 45(B) provides that the court clerk shall promptly acknowledge a request for access to court records and shall respond to the request within a reasonable amount of time.
Anyone seeking to restrict public access must file a written motion with the court asking the court to restrict access to information or, if necessary, the entire document. See Sup.R. 45(E)(1). The court may also restrict public access to the case document on its own order. Id. The court must give notice of the motion or order to all parties in the case and may schedule a hearing on the motion. Id. Before restricting public access to a case document, the court must find by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest” after considering the following factors: (a) whether public policy is served by restricting public access; (b) whether any state, federal, or common law exempts the document or information from public access; (c) whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process. See Sup.R. 45(E)(2). In restricting access to a case document, the court must use the least restrictive means available, including but not limited to: redacting the information rather than limiting access to the entire document; restricting remote access to the document while maintaining direct access (as defined in Sup.R. 44); restricting access only for a specific period of time; using a generic title or description for the document; or using initials or other identifiers for the parties’ proper names. See Sup.R. 45(E)(3).
The news media and any member of the public may seek, by written motion, access to a case document that has been restricted. See Sup.R. 45(F)(1). The court will notify all parties that such a motion has been filed and may schedule a hearing on the motion. Id. The court may permit public access if it finds by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest. See Sup.R. 45(F)(2). The court will consider whether the original reason for restricting access no longer exists or is no longer applicable and whether any new circumstances have arisen which would require the restriction of public access. Id. Anyone who wants to appeal the trial court’s ruling regarding restricting public access to case documents may pursue an action in mandamus. See Sup.R. 47(B). In addition, Rule 12 of the Rules of Superintendence for the Courts of Ohio governs the conditions under which broadcasting and photographing court proceedings will be allowed. See Sup.R. 12.
CompareB. Overcoming a presumption of openness
The Ohio Supreme Court has adopted the Press-Enterprise II test when dealing with the closure of all court proceedings. In doing so, it held “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). As a result, judges, using their discretion, make closure decisions based on the “totality of the circumstances.” Id. at 453. However, the trial court must state specific reasons justifying the closure. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). The trial court must allow the media an opportunity to be heard before closing a court proceeding and must consider factors such as “the nature and weight of the interest to be protected by the closure, the availability of reasonable alternatives that would protect the asserted interest without necessitating closure, and whether the restriction is drawn as narrowly as possible.” Id. Before closing court proceedings, the trial court must articulate a sufficient interest to support closure along with specific findings so a reviewing court can determine whether closure was proper. Id.
CompareC. Procedural prerequisites to closure
The Ohio Supreme Court has adopted the Press-Enterprise II test for closing court proceedings. In doing so, the Court held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In reT.R., 556 N.E.2d 439, 446 (Ohio 1990). As a result, judges, using their discretion, make closure decisions based on the “totality of the circumstances.” Id. at 453. The media or public seeking access must be given an opportunity to be heard to voice their objections to closure. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). The court must consider factors including, but not limited to, “the nature and weight of the interest to be protected by the closure, the availability of reasonable alternatives that would protect the asserted interest without necessitating closure, and whether the restriction is drawn as narrowly as possible.” Id. The court must make specific findings of fact to support closure so that a reviewing court can determine whether closure was proper. Id. Before closing media access to jury view of crime scene, trial court must conduct a hearing, make appropriate findings, and enter its decision on the record. State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551, 555 (Ohio Ct. App. 2010). To support closure, the trial court “must find that (1) closure is essential to preserve a higher or overriding interest and (2) the closure order is narrowly tailored to serve that interest.” Id. Moreover, “[i]f the interest advanced is the defendant’s right to a fair trial, closure may be ordered only where the court finds that (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and (2) reasonable alternatives to closure cannot adequately protect the defendant’s fair-trial rights.” Id at 555–56.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
The media and the public have standing to seek a writ of prohibition when challenging a closure order. State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 130 (Ohio 1976); State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39 (Ohio 1986).
CompareB. Procedure for requesting access in criminal cases
The Rules of Superintendence for the Courts of Ohio allow jurisdictions to establish local rules to “facilitate the expeditious disposition of cases,” provided that the local rules are consistent with the Rules of Superintendence. Sup.R. 5(A)(1). Under Sup.R. 12, the judge must permit, with some limitations, the broadcasting and photography of any open proceeding under Ohio law. The media, however, must present a written request and the written order will become part of the record of the proceedings. Sup.R. 12(A). Likewise, if the media seeks access to a case document that has been restricted from public access, the media must do so by written motion to the court. Sup.R. 45(F). It is appropriate for the media to intervene for purposes of opposing the closure motion. See Rule 24 of the Ohio Rules of Civil Procedure; see also Rule 57(B) of the Ohio Rules of Criminal Procedure (adopting civil rules of procedure when no similar criminal rule of procedure exists).
CompareC. Procedure for requesting access in civil matters
The Rules of Superintendence for the Courts of Ohio allow jurisdictions to establish local rules to “facilitate the expeditious disposition of cases,” provided that the local rules are consistent with the Rules of Superintendence. Sup.R. 5(A)(1). Under Sup.R. 12, the judge must permit, with some limitations, the broadcasting and photography of any open proceeding under Ohio law. The media, however, must present a written request and the written order will become part of the record of the proceedings. Sup.R. 12(A). Likewise, if the media seeks access to a case document that has been restricted from public access, the media must do so by written motion to the court. Sup.R. 45(F). It is appropriate for the media to intervene for purposes of opposing the closure motion. See Rule 24 of the Ohio Rules of Civil Procedure.
CompareD. Obtaining review of initial court decisions
The media may challenge a closure order through a writ of prohibition. In re T.R., 556 N.E.2d 439, 445 (Ohio 1990). The Ohio Supreme Court and the Ohio Courts of Appeals may both hear cases involving writs of prohibition. See Judicial System Structure, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/JudSystem/ (last visited Jan. 30, 2020). To obtain a writ of prohibition, the challenger “must establish: (1) that the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of such power is unauthorized by law, and (3) that the refusal of the writ will result in injury for which no other adequate remedy exists.” Commercial Sav. Bank v. Wyandot Cty. Court of Common Pleas, 519 N.E.2d 647, 648-649 (Ohio 1988). Ohio courts have referred to writs of prohibition as “the most difficult of any of the extraordinary remedies . . . to sustain.” State ex rel. Util. Workers Union of America v. Macelwane, 187 N.E.2d 901, 906 (Ohio Ct. App. 1961). Writs of prohibition will arise only “in cases of extreme necessity” and never in a “doubtful or borderline case.” Id. The standard of review of closure orders is abuse of discretion. In re T.R., 556 N.E.2d at 453. Rule 11.1 of the Ohio Rules of Appellate Procedure allows for accelerated treatment of cases that “do not require as extensive or time consuming procedures as others.” Each of Ohio’s 12 district courts of appeals has its own rules for accelerated cases.
CompareIII. Access to criminal proceedings
CompareA. In general
The Ohio Supreme Court generally recognizes a First Amendment right for the press and public to attend court proceedings. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). “Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.” Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 134 (Ohio 1976)). The Ohio Supreme Court has adopted the Press-Enterprise II “experience and logic” test, which “accurately defines the limits of constitutionally protected access to all court proceedings.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). In applying Press-Enterprise II, the Ohio Supreme Court held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” Id.
In the context of criminal trials, the accused’s constitutional right to a public trial also supports the right of public access to the trial, including pretrial proceedings. See In re T.R., 556 N.E.2d at 446; Unger, 504 N.E.2d at 40. “The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society.” Unger, 504 N.E.2d at 39.
The Ohio Supreme Court has consistently held that the media and public have a qualified right of access to criminal proceedings. See, e.g., State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127 (Ohio 1976) (pretrial proceedings in kidnapping, extortion and murder case); State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976) (trial testimony); Unger, 504 N.E.2d 37 (pretrial proceedings); see also State ex rel. Cincinnati Enquirer v. Bronson, 975 N.E.2d 551 (Ohio Ct. App. 2010) (jury view of crime scene). However, a trial judge can restrict ingress and egress to “minimize distractions during jury instructions, closing arguments, and witness testimony.” State ex rel. Livingston v. Bates, 111 N.E.3d 1287, 1293 (Ohio Ct. App. 2018).
CompareB. Pretrial proceedings
The Ohio Supreme Court has likewise held the public has a right to attend pretrial proceedings under the Ohio Constitution and the United States Constitution. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986) (applying the First Amendment standard to pretrial proceedings). As a result, the media and public have a right to attend integral parts of the criminal prosecution including “preliminary probable-cause hearings, suppression hearings, [and] bail hearings.” State v. Morris, 811 N.E.2d 577, 579 (Ohio Ct. App. 2004); see also State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127 (Ohio 1976) (holding court order closing a pretrial suppression hearing to be unconstitutional).
CompareC. Criminal trials
The Ohio Supreme Court has ruled the public has a “qualified right of access … to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). Ohio recognizes this access comes not only from the First Amendment and Open Courts provision of the Ohio Constitution but also as part of the criminal defendant’s right to a public trial. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39–40 (Ohio 1986); see also State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976) (trial testimony); State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551 (Ohio Ct. App. 2010) (jury view of crime scene). This does not extend to all phases of the courtroom including “grand jury hearings, petit jury deliberations, conferences in chambers, the issuance of search warrants, and the conferences of collegial courts.” In re T.R., 556 N.E.2d at 447. Moreover, the Rules of Superintendence for the Courts of Ohio require the judge to “inform victims and witnesses of their right to object to being filmed, videotaped, recorded or photographed.” Sup.R. 12(C)(2). This does not automatically ban recording or photographing witnesses; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.” State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 319 (Ohio 2007).
CompareD. Post-trial proceedings
The right of access to court proceedings extends to sentencing hearings. State v. Morris, 811 N.E.2d 577, 579 (Ohio Ct. App. 2004). However, this right is not absolute, and the court may restrict access using the same analysis applied when considering closure of a hearing. Id. at 579–80. See also Shifflet v. Thomson Newspapers, Inc., 431 N.E.2d 1014 (Ohio 1982) (expungement proceedings may be held in open court).
CompareE. Appellate proceedings
Proceedings before the Ohio Supreme Court and the Ohio Courts of Appeal are traditionally open. In its “Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court,” the Ohio Supreme Court states it “is committed to increasing public understanding of the judicial process by providing access to and opening proceedings of the Court to the public.” See Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/PIO/MediaRequestInfo/default.asp (last visited Jan. 30, 2020). The Ohio Supreme Court streams oral arguments live online. Some Ohio Courts of Appeal videotape oral arguments and post the videos on YouTube.
CompareIV. Access to criminal court records
CompareA. In general
In Ohio, court records are presumed open. See Sup.R. 45(A). The public’s right of access to court records is enforced through a mandamus action. State ex rel. Beacon Journal Pub’g Co. v. Bond, 781 N.E.2d 180, 195 (Ohio 2002). Under Ohio law, an official with a statutory duty to oversee public records is considered to be the “person responsible” for making the records available to the public. See State ex rel. MADD v. Gosser, 485 N.E.2d 706 (Ohio 1985). Though there is a right of access to public records, this right is not violated by the sealing of official records after a not guilty finding or dismissal of a complaint. See State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094 (Ohio 2004).
Rules 44 through 47 of the Rules of Superintendence for the Courts of Ohio provide additional requirements regarding the circumstances in which court records can be withheld from the media and the public. Sup.R 44(B) defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 45(A) provides that “[c]ourt records are presumed open to public access.” Sup.R. 45(B) provides that the court clerk shall promptly acknowledge a request for access to court records and shall respond to the request within a reasonable amount of time.
Anyone seeking to restrict public access must file a written motion with the court asking the court to restrict access to information or, if necessary, the entire document. See Sup.R. 45(E)(1). The court may also restrict public access to the case document on its own order. Id. The court must give notice of the motion or order to all parties in the case and may schedule a hearing on the motion. Id. Before restricting public access to a case document, the court must find by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest” after considering the following factors: “(a) whether public policy is served by restricting public access; (b) whether any state, federal, or common law exempts the document or information from public access; and (c) whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.” Sup.R. 45(E)(2). In restricting access to a case document, the court must use the least restrictive means available, including but not limited to: redacting the information rather than limiting access to the entire document; restricting remote access to the document while maintaining direct access (as defined in Sup.R. 44); restricting access only for a specific period of time; using a generic title or description for the document; or using initials or other identifiers for the parties’ proper names. See Sup.R. 45(E)(3).
The news media and any member of the public may seek, by written motion, access to a case document that has been restricted. See Sup.R. 45(F)(1). The court will notify all parties that such a motion has been filed and may schedule a hearing on the motion. Id. The court may permit public access if it finds by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest. SeeSup.R. 45(F)(2). The court will consider whether the original reason for restricting access no longer exists or is no longer applicable and whether any new circumstances have arisen which would require the restriction of public access. Id. Anyone who wants to appeal the trial court’s ruling regarding restricting public access to case documents may pursue an action in mandamus. See Sup.R. 47(B). Furthermore, Sup.R. 44(C)(2) of the Rules of Superintendence for the Courts of Ohio excludes certain documents from the definition of “case documents” that are presumptively open to the public:
(2) The term “case document” does not include the following:
(a) A document or information in a document exempt from disclosure under state, federal, or the common law;
(b) Personal identifiers, as defined in division (H) of this rule;
(c) A document or information in a document to which public access has been restricted pursuant to Sup.R. 45(E);
(d) Except as relevant to the juvenile's prosecution later as an adult, a juvenile's previous disposition in abuse, neglect, and dependency cases, juvenile civil commitment files, post-adjudicatory residential treatment facility reports, and post-adjudicatory releases of a juvenile's social history;
(e) Notes, drafts, recommendations, advice, and research of judicial officers and court staff;
(f) Forms containing personal identifiers, as defined in division (H) of this rule, submitted or filed pursuant to Sup.R. 45(D)(2);
(g) Information on or obtained from the Ohio Courts Network, except that the information shall be available at the originating source if not otherwise exempt from public access;
(h) In a court of common pleas or a division thereof with domestic relations or juvenile jurisdiction, the following documents, including but not limited to those prepared pursuant to R.C. 2151.281, 3105.171(E)(3), and 3109.04 and Sup.R. 48:
(i) Health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) Drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) Guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) Home investigation reports, including collateral source documents attached to or filed with the reports;
(v) Child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) Domestic violence risk assessments;
(vii) Supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) Financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) Asset appraisals and evaluations.
Sup.R. 44(C)(2).
CompareB. Arrest records
Arrest records that contain the names of persons who have been formally charged with an offense are public records. See State ex rel. Outlet Commc’n v. Lancaster Police Dep’t, 528 N.E.2d 175, 178 (Ohio 1998). However, confidential law enforcement investigatory records are exempt from disclosure if the records pertain to a law enforcement matter of a criminal, quasi-criminal, civil or administrative nature and if release would create a high probability of disclosing: (1) the identity of an uncharged suspect; (2) the identity of a source or witness to whom confidentiality was reasonably promised; (3) specific confidential investigatory techniques or procedures or specific investigatory work product; or (4) information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. R.C. § 149.43(A)(2)(a)–(d).
CompareC. Dockets
The Ohio Rules of Superintendence classify dockets as court records. Sup.R. 44(B)–(C)(1). “Court records are presumed open to public access.” Sup.R. 45(A). The rules provide for a method to view dockets through direct and remote access. Sup.R. 45(B)–(C). The court shall restrict public access, however, when “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
CompareD. Warrants, wiretaps and related materials
Ohio does not recognize a First Amendment right to access search warrant materials, but it does recognize a common law right. This common law right can be overcome; for example, when release would interfere with the ongoing criminal investigation. See In re Search of Fair Finance, Fair Fin., Obsidian Enters., No. 5:09 MC 117, 2010 WL 3210975 (N.D. Ohio Aug. 10, 2010); In Re Search Warrants for Nat’l Builders Corp., 833 F. Supp. 644 (N.D. Ohio 1993).
If a search warrant, affidavit or return is a confidential law enforcement investigatory record, then it may be withheld from public access. R.C. § 149.43(A)(2). Warrant materials during pre-indictment investigations are also not public records. See Dream Fields, LLC v. Bogart, 885 N.E.2d 978, 979 (Ohio Ct. App. 2008) (citation omitted).
CompareE. Discovery materials
Pretrial discovery in criminal cases does not fit the definition of public record, and denial of access to pretrial discovery is not a violation of the public’s right of access. See State ex rel. WHIO-TV-7 v. Lowe, 673 N.E.2d 1360, 1363–64 (Ohio 1997). “Criminal discovery . . . would be frustrated” if discovery materials were subject to disclosure. Id. at 1364; see also Adams v. Metallica, 758 N.E.2d 286, 291–92 (Ohio Ct. App. 2001) (finding pretrial discovery in civil cases is not public record and, once filed, discovery materials may be sealed from public view if there is good cause). However, if the pretrial discovery materials are introduced in court as exhibits in a pretrial hearing, the materials are considered court records and are subject to disclosure, unless the trial court determines that disclosure would affect the defendant’s right to a fair trial. State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656 (Ohio Ct. App. 2001).
CompareF. Pretrial motions and records
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). These pretrial documents are presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2). Pretrial discovery submitted as part of the court record becomes public record. State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656, 660 (Ohio 2001). The court retains the ability not to release the records during the pendency of the trial if disclosure would affect the defendant’s right to a fair trial. Id. at 661.
When court records have been expunged, they are not available for public disclosure. R.C. § 2953.31 et seq.; R.C. § 2953.51 et seq. Similarly, a court, after balancing the public and private interests, may seal a trial record after a finding of not guilty or after dismissal of a complaint. State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094, 1097–98 (Ohio 2004).
CompareG. Trial records
All “case documents” are presumed open to public access. Case documents may only be sealed after a hearing in which the court determines that the clear and convincing evidence of prejudice to a party outweighs the right of access. See State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989 (Ohio 2014); State ex rel. Vindicator Printing Co. v. Wolff, 974 N.E.2d 89 (Ohio 2012).
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). As a result, the rules consider documents introduced at trial to be presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
CompareH. Post-trial records
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup. R. 44(C)(1)–(C)(2). These documents are presumptively open to the public. Sup.R. 45(A). The court shall restrict public access to these documents only if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
Pre-sentence reports are not public records. See State ex rel. MADD v. Gosser, 485 N.E.2d 706, 709 n.2 (Ohio 1985); In re Special Grand Jury Investigation Concerning Organic Tech., 656 N.E.2d 329, 331 (Ohio 1995). Records related to probation and parole proceedings are not public records. State ex rel. Hadlock v. Polito, 600 N.E.2d 709, 710 (Ohio Ct. App. 1991). Victim’s statements are public records subject to disclosure. Sheely v. Norris, No. 92-P-0027, 1993 WL 512849, at *3 (Ohio Ct. App. Oct. 7, 1993); Pinkava v. Corrigan, 581 N.E.2d 1181, 1182 (Ohio 1990).
CompareI. Appellate records
The Rules of Superintendence for the Courts of Ohio apply to all courts of appeal. Sup.R. 1(A). Thus, appellate court records are presumptively open, unless they fall within a specific exception, and appellate courts must follow the procedures set forth in the Rules to order a particular record closed. See Sup.R. 44, 45.
CompareJ. Other criminal court records issues
The Ohio Supreme Court defines “public records” to include “any record required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law.” State ex rel. Harmon v. Bender, 494 N.E.2d 1135, 1136 (Ohio 1986). This broad definition includes videotapes and other recordings of trial proceedings. Id. at 1137. The Rules of Superintendence for the Courts of Ohio require courts to provide direct access to records, meaning “during regular business hours at the place where the record is made available.” Sup.R. 44(J), 45(B). The Rules provide that courts may offer remote (electronic) access as well. Sup.R. 45(C). The remote access record must be identical to the record available by direct access though it can exclude an exhibit or attachment if noted on the document. Sup.R. 45(C)(1). Many trial courts and appellate courts allow online access to court dockets in criminal and civil cases.
CompareV. Access to civil proceedings
CompareA. In general
The Ohio Supreme Court recognizes the Press Enterprise II test of “experience and logic” as defining access to all court proceedings in both the criminal and civil context. See In re T.R., 556 N.E.2d 439, 446 (Ohio 1990) (citing Cincinnati Gas & Elec. Co. v. General Elec. Co., 854 F.2d 900 (6th Cir. 1988) as applying Press-Enterprise II to determine public right of access to civil cases).
The Ohio Supreme Court generally recognizes a First Amendment right for the press and public to attend court proceedings, whether civil or criminal. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). “Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.” Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 134 (Ohio 1976)). The Ohio Supreme Court has adopted the Press-Enterprise II “experience and logic” test, which “accurately defines the limits of constitutionally protected access to all court proceedings.” In re T.R., 556 N.E.2d at 446. In applying Press-Enterprise II, the Ohio Supreme Court held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” Id.
CompareB. Pre-trial proceedings
The Ohio Supreme Court has ruled that the public has a “qualified right of access . . . to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). For example, Ohio recognizes voir dire as open to the public under this test. State ex rel. Beacon Journal Publ’g Co. v. Bond, 781 N.E.2d 180, 188 (Ohio 2002). In doing so, the Ohio Supreme Court based its analysis on the “experience and logic” test of Press-Enterprise II. Id. at 187–88 (citing Press-Enterprise Co v. Superior Court, 478 U.S. 1, 9 (1986)).
CompareC. Trials
The Ohio Supreme Court has ruled the public has a “qualified right of access … to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). This does not extend to all court proceedings which are historically closed, such as “petit jury deliberations, conferences in chambers, the issuance of search warrants, and the conferences of collegial courts.” Id. at 447. Moreover, the Rules of Superintendence for the Courts of Ohio require the judge to “inform the victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed.” Sup.R. 12(C)(2). This does not automatically ban recording or photographing witnesses; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.” State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 319 (Ohio 2007).
CompareD. Post-trial proceedings
The Ohio Supreme Court has not directly addressed this subject but has generally recognized a “qualified right of access . . . to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990).
CompareE. Appellate proceedings
Proceedings before the Ohio Supreme Court and the Ohio Courts of Appeal are traditionally open. In its “Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court,” the Ohio Supreme Court states it “is committed to increasing public understanding of the judicial process by providing access to and opening proceedings of the Court to the public.” See Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court, Supreme Court of Ohio & Ohio Judicial System, at http://www.supremecourt.ohio.gov/PIO/MediaRequestInfo/default.asp (last visited Jan. 30, 2020). The Ohio Supreme Court streams oral arguments live online. Some Ohio Courts of Appeal videotape oral arguments and post the videos on YouTube.
CompareVI. Access to civil records
CompareA. In general
In Ohio, court records are presumed open to public access. See Sup.R. 45(A). The public’s right of access to court records is enforced through a mandamus action. State ex rel. Beacon Journal Pub’g Co. v. Bond, 781 N.E.2d 180, 195 (Ohio 2002). Under Ohio law, an official with a statutory duty to oversee public records is considered to be the “person responsible” for making the records available to the public. See State ex rel. MADD v. Gosser, 485 N.E.2d 706 (Ohio 1985). Though there is a right of access to public records, this right is not violated by the sealing of official records after a not guilty finding or dismissal of a complaint. See State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094 (Ohio 2004).
Rules 44 through 47 of the Rules of Superintendence for the Courts of Ohio provide additional requirements regarding the circumstances in which court records can be withheld from the media and the public. Sup.R 44(B) defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 45(A) provides that “[c]ourt records are presumed open to public access.” Sup.R. 45(B) provides that the court clerk shall promptly acknowledge a request for access to court records and shall respond to the request within a reasonable amount of time.
Anyone seeking to restrict public access must file a written motion with the court asking the court to restrict access to information or, if necessary, the entire document. See Sup.R. 45(E)(1). The court may also restrict public access to the case document on its own order. Id. The court must give notice of the motion or order to all parties in the case and may schedule a hearing on the motion. Id. Before restricting public access to a case document, the court must find by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest” after considering the following factors: “(a) whether public policy is served by restricting public access; (b) whether any state, federal, or common law exempts the document or information from public access; and (c) whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.” Sup.R. 45(E)(2). In restricting access to a case document, the court must use the least restrictive means available, including but not limited to: redacting the information rather than limiting access to the entire document; restricting remote access to the document while maintaining direct access (as defined in Sup. R. 44); restricting access only for a specific period of time; using a generic title or description for the document; or using initials or other identifiers for the parties’ proper names. See Sup.R. 45(E)(3).
The news media and any member of the public may seek, by written motion, access to a case document that has been restricted. See Sup.R. 45(F)(1). The court will notify all parties that such a motion has been filed and may schedule a hearing on the motion. Id. The court may permit public access if it finds by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest. SeeSup.R. 45(F)(2). The court will consider whether the original reason for restricting access no longer exists or is no longer applicable and whether any new circumstances have arisen which would require the restriction of public access. Id. Anyone who wants to appeal the trial court’s ruling regarding restricting public access to case documents may pursue an action in mandamus. See Sup.R. 47(B). Furthermore, Sup.R. 44(C)(2) of the Rules of Superintendence for the Courts of Ohio excludes certain documents from the definition of “case documents” that are presumptively open to the public:
(2) The term “case document” does not include the following:
(a) A document or information in a document exempt from disclosure under state, federal, or the common law;
(b) Personal identifiers, as defined in division (H) of this rule;
(c) A document or information in a document to which public access has been restricted pursuant to Sup.R. 45(E);
(d) Except as relevant to the juvenile's prosecution later as an adult, a juvenile's previous disposition in abuse, neglect, and dependency cases, juvenile civil commitment files, post-adjudicatory residential treatment facility reports, and post-adjudicatory releases of a juvenile's social history;
(e) Notes, drafts, recommendations, advice, and research of judicial officers and court staff;
(f) Forms containing personal identifiers, as defined in division (H) of this rule, submitted or filed pursuant to Sup.R. 45(D)(2);
(g) Information on or obtained from the Ohio Courts Network, except that the information shall be available at the originating source if not otherwise exempt from public access;
(h) In a court of common pleas or a division thereof with domestic relations or juvenile jurisdiction, the following documents, including but not limited to those prepared pursuant to R.C. 2151.281, 3105.171(E)(3), and 3109.04 and Sup.R. 48:
(i) Health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) Drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) Guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) Home investigation reports, including collateral source documents attached to or filed with the reports;
(v) Child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) Domestic violence risk assessments;
(vii) Supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) Financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) Asset appraisals and evaluations.
Sup.R. 44(C)(2).
CompareB. Dockets
The Ohio Rules of Superintendence classify dockets as court records. Sup.R. 44(B)–(C)(1). “Court records are presumed open to public access.” Sup.R. 45. The rules provide for a method to view dockets through direct and remote access. Sup.R. 45(B)–(C). The court shall restrict public access, however, when “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
CompareC. Discovery materials
CompareD. Pre-trial motions and records
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). These pretrial documents are presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2). Pretrial discovery submitted as part of the court record becomes public record. State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656, 660 (Ohio 2001). The court retains the ability not to release the records during the pendency of the trial if disclosure would affect the defendant’s right to a fair trial. Id. at 661.
When court records have been expunged, they are not available for public disclosure. R.C. § 2953.31 et seq.; R.C. § 2953.51 et seq. Similarly, a court, after balancing the public and private interests, may seal a trial record after a finding of not guilty or after dismissal of a complaint. State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094, 1097–98 (Ohio 2004).
CompareE. Trial records
All “case documents” are presumed open to public access. Case documents may only be sealed after a hearing in which the court determines that the clear and convincing evidence of prejudice to a party outweighs the right of access. See State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989 (Ohio 2014); State ex rel. Vindicator Printing Co. v. Wolff, 974 N.E.2d 89 (Ohio 2012).
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). As a result, the rules consider documents introduced at trial to be presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
CompareF. Settlement records
The Ohio Supreme Court has held “the constitutional right of privacy does not preclude disclosure of [] sealed settlement figures.” State ex rel. WBNS TV, Inc. v. Dues, 805 N.E.2d 1116, 1125 (Ohio 2004). Therefore, though exempting settlement figures from disclosure may have strong policy arguments behind it, the court may not do so based on policy alone. Id. at 1124. If a court uses a record, such as an application for approval of a settlement, in making a decision, the record becomes a public document subject to disclosure. Id. at 1122. This principle also applies to settlements involving governmental entities. State ex rel. Kinsley v. Berea Bd. of Educ., 582 N.E.2d 653, 655 (Ohio 1990).
CompareG. Post-trial records
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments…,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). These documents are presumptively open to the public. Sup.R. 45(A). The Court shall restrict public access to these documents if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2).
CompareH. Appellate records
The Rules of Superintendence for the Courts of Ohio apply to all courts of appeal. Sup.R. 1(A). Thus, appellate court records are presumptively open, unless they fall within a specific exception, and appellate courts must follow the procedures set forth in the Rules to order a particular record closed. See Sup.R. 44, 45.
CompareI. Other civil court records issues
The Ohio Supreme Court defines “public records” to include “any record required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law.” State ex rel. Harmon v. Bender, 494 N.E.2d 1135, 1136 (Ohio 1986). This broad definition includes videotapes and other recordings of trial proceedings. Id. at 1137. The Rules of Superintendence for the Courts of Ohio require courts to provide direct access to records, meaning “during regular business hours at the place where the record is made available.” Sup.R. 44(J), 45(B). The Rules provide that courts may offer remote (electronic) access as well. Sup.R. 45(C). The remote access record must be identical to the record available by direct access though it can exclude an exhibit or attachment if noted on the document. Sup.R. 45(C)(1).
“Administrative documents” of the courts are also presumptively open under Rules 44 and 45 of the Rules of Superintendence for the Courts of Ohio. An “administrative document” is “a document and information in a document created, received, or maintained by a court that serves to record the administrative, fiscal, personnel, or management functions, policies, decisions, procedures, operations, organization, or other activities of the court,” subject to certain exclusions. Sup.R. 44(G).
Many trial courts and appellate courts allow online access to court dockets in criminal and civil cases.
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
In Ohio ex rel. Beacon Journal Publ’g Co. v. Donaldson, 586 N.E.2d 101 (Ohio 1992), the Ohio Supreme Court reversed an appellate court decision which held that a challenge to closure of voir dire in a highly publicized criminal case was moot because the transcript was not sealed, a local rule providing for notice and opportunity to object and request a hearing had been promulgated, and the trial was open to the public.
Criminal juror questionnaires are public record, but juror responses are not. See Ohio ex rel. Beacon Journal Publ’g Co. v. Bond, 781 N.E.2d 180 (Ohio 2002). The Supreme Court of Ohio held in Bond that there is a qualified First Amendment right of access to questions asked in the juror questionnaires and in the list of juror names and addresses. Id. at 195. The court remanded to the trial court to weigh the right of access against the privacy interests. Id. at 195–96.
CompareB. Juror identities, questionnaires and other records
In Ohio, defendants have “no unqualified constitutional right to know the identity of jurors.” State v. Hill, 749 N.E.2d 274, 282 (Ohio 2001). A trial court, however, “should not order the empaneling of an anonymous jury without ‘(a) concluding that there is strong reason to believe that the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.’” Id. at 281 (quoting United States v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999)).
The Ohio Supreme Court has defined jury questionnaires without responses as public records subject to disclosure. See State ex rel. Beacon Journal Publ’g v. Bond, 781 N.E.2d 180, 187 (Ohio 2002). Responses to the questions may also be disclosed under the First Amendment. Id. at 194. Courts, however, must inform prospective jurors of their right to an in-camera hearing regarding the protection of privacy interests revealed in a juror question and may require redaction of Social Security numbers, telephone numbers and driver’s license numbers from the questionnaires before public disclosure. Id. at 189–90. Before ruling that juror questionnaires will not be publicly disclosed, the trial court must “(1) make specific findings, on the record, demonstrating that there is a substantial probability that the defendant would be deprived of a fair trial by the disclosure of the questionnaires and (2) consider whether alternatives to total suppression of the questionnaires would have protected the interest of the accused.” Id. at 191.
The public also has a qualified right of access to the jury list that may be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 194 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).
Before disclosure of juror questionnaires, a court can in its discretion order redaction of certain information, including juror “names, addresses, Social Security numbers, telephone numbers, driver’s license numbers, and current employers.” State ex rel. Cincinnati Enquirer v. Ghiz, 101 N.E.3d 1005, 1012 (Ohio Ct. App. 2017).
CompareC. Grand jury proceedings and records
“Deliberations of the grand jury and the vote of any grand juror shall not be disclosed.” Ohio Crim. R. 6(E). See State ex rel. Beacon Journal Publ’g Co. v. Waters, 617 N.E.2d 1110 (Ohio 1993) (holding that this protection extends to grand jury subpoenas and the witness book). However, the release of grand jury materials is authorized in rare circumstances. In re Grand Jury Investigation, 580 N.E.2d 868, 875 (Ohio C.P. 1991) (holding that the only other exceptions to grand jury secrecy are, “where a ‘particularized need’ for disclosure has been established in a pending judicial proceeding, criminal or civil, by a party thereto, and where, after the term of the grand jury has ended, a witness reveals what he himself disclosed to the grand jury.”). Evidentiary documents that would otherwise be public records remain public records, even if they have been submitted to the grand jury. See State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor’s Office, 824 N.E.2d 64, 66 (Ohio 2005) (citing State ex rel. Cincinnati Enquirer v. Hamilton Cty., 662 N.E.2d 334, 338 (Ohio 1996)).
Ohio’s rules of criminal procedure prohibit any obligation of secrecy—such as an oath—on grand jury witnesses. See Beacon Journal Publ’g Co. v. Unger, 532 F. Supp. 55 (N.D. Ohio 1982).
CompareD. Interviewing jurors
A trial judge cannot ban jurors from media interviews after the verdict. State ex rel. Cincinnati Post v. Court of Common Pleas of Hamilton Cty., 570 N.E.2d 1101, 1105 (Ohio 1991). However, the trial judge may “instruct the jurors that they have no obligation to discuss the case with anyone . . . [and] forbid reporters to pester jurors for interviews once the jurors have refused to talk.” Id. at 1103.
CompareVIII. Proceedings involving minors
CompareA. Delinquency
Juvenile delinquency proceedings are neither presumptively open nor presumptively closed. State ex rel. Plain Dealer Publ’g Co. v. Geauga Cty. Court of Common Pleas, 734 N.E.2d 1214, 1220 (Ohio 2000). A court can “restrict public access to delinquency proceedings if . . . the court finds that (1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, (2) the potential for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure.” Id. See also State ex rel. Plain Dealer Publ’g Co. v. Floyd, 855 N.E.2d 35 (Ohio 2006) (holding that a judge cannot close juvenile delinquency proceedings without a hearing). Minor misdemeanor proceedings are not immediately sealable. State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989, 998 (Ohio 2014).
CompareB. Dependency
Juvenile cases regarding abuse, neglect, dependency and custody matters are neither presumptively open nor presumptively closed. In re T.R., 556 N.E.2d 439, 451 (Ohio 1990). In dependency, abuse, neglect, and custody hearings, the court may restrict public access upon finding that “(1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the proceeding and (2) the potential for harm outweighs the benefits of public access.” Id.
CompareC. Other proceedings involving minors
The Ohio Juvenile Rules of Procedure authorize closure of probable cause hearings, but do not mandate closure. State ex rel. Roberts v. Pierce, 13 Media L. Rep. 1142 (Ohio Ct. App. 1986).
In State ex rel. Dispatch Printing Co. v. Louden, 741 N.E.2d 517 (Ohio 2001), the Ohio Supreme Court prohibited a judge from closing juvenile proceedings to the media without a hearing. Public access to juvenile proceedings can be restricted only if, after hearing evidence and argument, the court finds: “(1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, (2) the potential for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure.” State ex rel. Plain Dealer Publ’g Co. v. Geauga County Court of Common Pleas, 734 N.E.2d 1214, 1220 (Ohio 2000). Procedural due process under the Fourteenth Amendment requires the court to enter motions for closure on a publicly available docket. State ex rel. Plain Dealer Publ’g Co. v. Floyd, 855 N.E.2d 35 (Ohio 2006).
Custody hearings in Ohio are presumed open and may only be closed if a hearing determines that there is a reasonable and substantial basis to believe the child or fairness of the proceedings would be harmed if open, and that harm outweighs the public’s interest in access. Ohio ex rel. Dispatch Printing Co. v. Lias, 628 N.E.2d 1368 (Ohio 1994).
CompareD. Prohibitions on photographing or identifying juveniles
The Ohio Supreme Court granted a writ of prohibition to prevent the enforcement of a juvenile court judge’s order, issued without a hearing, forbidding the photographing the face of an alleged delinquent. State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 319 (Ohio 2007). However, the court noted that “there is no constitutional right of access to juvenile delinquency proceedings.” Id.
In State ex rel. Plain Dealer Publ’g Co. v. Floyd, 855 N.E.2d 35 (Ohio 2006), the Ohio Supreme Court held that, in absence of qualified constitutional right of access to juvenile proceedings, proceedings are neither presumed open or closed. Public access can only be restricted if, after hearing evidence and argument, the court finds: (1) public access could harm the child or endanger the fairness of the proceeding, (2) the potential for harm outweighs the benefits of public access, and (3) there are “no reasonable alternatives.” Id. at 42. In addition, procedural due process under the Fourteenth Amendment requires the court to enter motions for closure on a publicly available docket. Id. at 47.
CompareE. Minor testimony in non-juvenile courts
Courts cannot close the courtroom during a minor’s testimony, unless the judge identifies, on the record, findings that support the decision to close the courtroom. State v. Alexander, No. 03-CA-789, 2004 WL 2340039 (Ohio Ct. App. Oct. 18, 2004).
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
Not applicable.
CompareB. Probate
Ohio courts and the Rules of Superintendence for the Courts of Ohio do not address right of public or media access to probate proceedings. However, court records are generally presumed open to public access. Sup.R. 45(A).
CompareC. Competency and commitment proceedings
Ohio Revised Code §§ 2945.37 through 2945.39 sets forth the procedure for competency and commitment of a criminal defendant. Psychiatric evaluations, utilized in determining the competency of a defendant, are public records subject to disclosure. See State v. Hall, 752 N.E.2d 318, 323 (Ohio Ct. App. 2001). Ohio courts and the Rules of Superintendence for the Courts of Ohio have not further addressed this issue.
CompareD. Attorney and judicial discipline
Disciplinary hearings before the Ohio Board of Professional Conduct are public. See Frequently Asked Questions, Ohio Board of Professional Conduct, https://docs.wixstatic.com/ugd/c6a571_665f9241908c4ff08ae970ff0223d7fe.pdf (last visited Jan. 30, 2020).
CompareE. Immigration proceedings
Not applicable.
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
The media has standing to challenge gag orders against third parties because gag orders “indirectly restrict [the media’s] access to proceedings.” State ex rel. Nat’l Broad. Co. v. Court of Common Pleas for Lake Cty., 556 N.E.2d 1120, 1124 (Ohio 1990).
CompareB. Gag orders on the press
To issue a gag order on the press, the circumstances must be imperative, a defendant’s right to trial will be clearly jeopardized without the order, and there is no other method for the court to protect that right. State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695, 697 (Ohio 1976). The court must hold a hearing and make findings showing the above before it can issue this order. Id. As stated by the Ohio Supreme Court, “[W]here the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions or sequestration of the jury, . . . no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings.” Id.
A gag order preventing the press from publishing information about one trial until the jury is selected for another trial is an unconstitutional prior restraint on the media. See State ex. rel Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 926 N.E.2d 634, 640 (Ohio 2010).
CompareC. Gag orders on participants
Trial courts may issue protective orders to gag criminal trial participants when their statements are reasonably likely to prejudice the defendant’s right to free trial or to create a “carnival atmosphere.” See State ex rel. E.W. Scripps Co. v. Stillwell, 10 Media L. Rep. 1380 (Ohio Ct. App. 1983). Such gag orders are unconstitutional when there are reasonable alternatives. Id.
The Ohio Rules of Criminal Procedure prohibit any obligation of secrecy—such as an oath—on grand jury witnesses. See Beacon Journal Publishing Co. v. Unger, 532 F. Supp. 55, 59 (N.D. Ohio 1982).
Ohio courts cannot completely prohibit juror communications about criminal cases without violating the First Amendment. See State ex rel. Cincinnati Post v. Court of Common Pleas of Hamilton Cty., 570 N.E.2d 1101 (Ohio 1991); see also State ex rel. Beacon Journal Publ’g Co. v. McMonagle, 8 Media L. Rep. 1927 (Ohio Ct. App. 1982) (holding that the court can encourage juror silence, but cannot prohibit jurors from speaking about a case).
The Ohio Supreme Court requires “specific, on the record findings” showing that a gag order is “essential to preserve higher values and is narrowly tailored to serve that interest.” State ex rel. Nat’l Broad. Co. v. Court of Common Pleas of Lake Cty., 556 N.E.2d 1120, 1125 (Ohio 1990) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). The court also requires press representatives and representatives of the public have the chance to be heard on the subject. Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982)). The court, however, need not hold a hearing to ban discussion of pending and impending court proceedings with court personnel. Id. In this context, the court does not consider attorneys court personnel. Id.
In attempting to narrowly tailor a gag order, the Ohio Supreme Court suggests courts look to the Code of Professional Responsibility as a guide. In re T.R., 556 N.E.2d 439, 455 n.13 (Ohio 1990). The Code restricts attorneys from speaking on evidence involved in the case, character and credibility of the witnesses, results of any test, opinions on the merits of the case, and any other matter that would interfere with a fair trial. Id.
CompareD. Interviewing judges
While Ohio courts have not addressed the issue of media attempts to interview a judge during the pendency of a case, judges are prohibited, under Rule 2.10 of the Ohio Code of Judicial Conduct, from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court . . . .” See Ohio Code of Judicial Conduct, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/LegalResources/Rules/conduct/judcond0309.pdf (last visited Jan. 30, 2020).
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
Ohio courts apply the Waller four-prong test to determine if it is necessary to exclude public access to courtroom proceedings. State v. Drummond, 854 N.E.2d 1038, 1054 (Ohio 2006). The test requires that the “party seeking to close the hearing [] advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 1054 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)).
When considering the closure of courtroom proceedings, Ohio courts cite concerns about the defendant’s right to a fair trial. See State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551, 555–56 (Ohio Ct. App. 2010); see also State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656 (Ohio Ct. App. 2001).
Limited portions of a civil trial may be sealed to prevent the release of confidential trade secrets. See, e.g. Milo v. Milo, 6 Media L. Rep. 2524 (Ohio Ct. C.P. 1981). The Ohio Court of Appeals has acknowledged the national security exemption from the First Amendment right of access in dicta. Dzina v. Dzina, No. 80029, 2002 WL 1265585, n.2 (Ohio Ct. App. May 30, 2002).
CompareB. Cameras and other technology in the courtroom
Rule 12 of the Rules of Superintendence for the Courts of Ohio governs the conditions under which broadcasting and photographing court proceedings will be allowed. Under Rule 12, judges must permit “broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law.” Sup.R. 12(A). See also State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 315 (Ohio 2007). The rule requires a written request for permission and the judge’s written order will become part of the record. Sup.R. 12(A).
While a judge may choose to restrict camera access in a juvenile proceeding, the judge must give all parties an opportunity to be heard on the closure. See Geer, 873 N.E.2d at 315. If allowing cameras in the courtroom, the judge must determine that allowing the cameras “would not distract the participants, impair the dignity of the proceedings or otherwise materially interfere with the achievement of a fair trial.” Sup.R. 12 cmt. However, judges can also impose limitations on camera access, including prohibiting audio pickup or broadcast of conferences between the attorney and client or the judge and the attorney. Sup.R. 12(C). The trial judge must also advise victims and witnesses of their “right to object to being filmed, videotaped, recorded or photographed.” Sup.R. 12(C). Rule 12 does not automatically ban recording or photographing of individuals in the courtroom; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.” Geer, 873 N.E.2d at 319.
The Rules also restrict the amount of television cameras (1 operator) and still photographers (1 photographer with 2 cameras) unless the judge specifically permits additional cameras in the courtroom. Sup.R. 12(B)(1)–(2). The media representative authorized to cover the proceeding shall be responsible for “pooling” arrangements. Sup.R. 12(B)(5). The judge may also allow non-distracting lighting. Sup.R. 12(B)(6). If there is a violation of any of the rules or a dispute with regards to “pooling,” the judge can revoke permission to broadcast or photograph the proceeding. Sup.R. 12(B)(5), (D).
Once the photographer obtains authorization, the judge will place the photographer inside the courtroom where the photographer has a clear view of the proceedings. Sup.R. 12(A), (B)(7). Still photographers, like television and radio representatives, cannot move about the courtroom once the judge has placed them except to leave and enter the room. Sup.R. 12(B)(7). The judge will not allow any distracting sound or light coming from the camera. Sup.R. 12(B)(6).
While Rule 12 does not specifically address the issue of webcasting, it appears webcasting of a proceeding falls under “broadcasting or recording by electronic means.” In fact, a former Medina County Common Pleas Court judge, Judge James Kimbler, has a YouTube channel featuring videos of proceedings in his courtroom. SeeJames Kimbler Channel, YouTube, https://www.youtube.com/user/insidethecourtmedina/videos (last visited Jan. 30, 2020).
Ohio courts have yet to address the issue of electronic devices in the courtroom, and the Rules of Superintendence do not speak directly to it. However, Rule 12(C) provides some guidance. Rule 12 states that, while the court is in session, “media representatives shall not be permitted to transmit or record anything other than the court proceedings.” Sup.R. 12(C)(4). The definition of the term “court proceedings” will be central to the future determination of this issue. A loose definition would allow greater flexibility, whereas a narrow interpretation may restrict the ability of the media and public to utilize electronic communication devices in the courtroom. Some Ohio Courts of Appeal have local rules regarding use of electronic devices in the courtroom. For example, Local Rule 21.2 of the First District Court of Appeals in Hamilton County provides: “During oral argument, no person present in the courtroom shall operate a cellular telephone or any other electronic communication or entertainment device without prior approval of the court.”
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The Ohio Supreme Court is the state’s highest court. The Ohio Supreme Court must accept cases originating in the courts of appeal, death penalty cases, cases involving the U.S. Constitution and/or the Ohio Constitution and appeals from administrative bodies. The Ohio Supreme Court also has original jurisdiction over writs of prohibition (used when objecting to the closure of a proceeding) and writs of mandamus (used to enforce right of access to court records). The Ohio Supreme Court has seven justices and sets forth the rules used in the lower courts, including the Rules of Superintendence.
Ohio has 12 district courts of appeal. Each court of appeal has original jurisdiction to hear writs of mandamus and writs of prohibition. The Tenth District Court of Appeals also hears appeals from the Ohio Court of Claims. The Ohio Court of Claims has original jurisdiction over civil lawsuits filed against the state of Ohio and its agencies.
Ohio has three types of trial courts: courts of common pleas, municipal courts (or county courts) and mayor’s courts. Each of Ohio’s 88 counties has a court of common pleas which can then be divided into separate divisions by the Ohio General Assembly. Those divisions include the general, domestic relations, juvenile, and probate divisions. The general division handles all criminal felony cases and civil cases where the amount in question is more than $15,000. The domestic relations division has jurisdiction over all divorce and child support hearings, while the juvenile division hears cases involving individuals under age 18 charged with crimes. The probate division handles disputes over wills and supervision of estates and guardianships.
The municipal and county courts hear cases involving misdemeanors as well as civil cases where the amount in dispute is less than $15,000. Municipal and county court judges may also perform marriages. If a community does not have a municipal court, a county court must serve the district.
While not a part of the judicial branch, mayor’s courts continue in the state of Ohio in cities of more than 200 people without a municipal court. Mayor’s courts may only hear cases involving local ordinances and Ohio traffic laws. Appeals from a mayor’s court go to the municipal or county court.
See Judicial System Structure, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/JudSystem/ (last visited Jan. 30, 2020).
Many Ohio courts have websites with contact information for judges, court clerks and other court personnel.
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